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2009 DIGILAW 797 (MP)

Meena Devi v. Gopiram Pathak

2009-07-10

SUBHASH SAMVATSAR

body2009
Judgment S. Samvatsar, J. ( 1. ) This is claimants appeal against the award dated 14.9.2002 passed by the Motor Accidents Claims Tribunal, Morena in Claim Case No. 69 of 2001 by which the Claims Tribunal has awarded a sum of Rs. 2,40,000 as compensation for the death of Nemichand Garg, husband of claimant No. 1 and father of appellant Nos. 2 to 4, who died in a motor accident. ( 2. ) Present appeal is filed by the claimants for enhancement of compensation while the insurance company, respondent No. 3, has filed a cross-objection under Order 41, rule 22 of Civil Procedure Code which is registered as I.A. No. 15067 of 2005 challenging its liability. Hence, both the appeal and the cross-objections are heard simultaneously. ( 3. ) So far as quantum of compensation is concerned, the contention of the learned counsel for the appellants-claimants is that the amount awarded by Claims Tribunal is on the lower side, while the counsel for the insurance company has supported the quantum of compensation. ( 4. ) As regards the income of the deceased, the Claims Tribunal has found that the deceased was a businessman and was an income tax payee. His monthly income was Rs. 10,000. The Claims Tribunal has however, held that since the deceased was a businessman, he must be spending 50 per cent towards his business. Thus, the Claims Tribunal assessed his income at Rs. 5,000 per month. The Claims Tribunal has further held that as per the statement of deceaseds wife Meena, the deceased had engaged 2 servants for running the shop and her 2 sons were earning members of family. Considering these facts, the Claims Tribunal has assessed the income of the deceased (sic dependency) at Rs. 2,000 per month and determined the compensation. ( 5. ) The approach adopted by the Claims Tribunal is clearly erroneous. A Division Bench of this court in the case of Urmila Deora v. Madhya Pradesh State Road Trans. Corpn., 2003 ACJ 1803 (MP), has laid down that when the deceased was an income tax payee and his returns are on record, then his income should be assessed on the basis of his returns. Sons of the deceased are doing some business is no ground to reduce the compensation. ( 6. Corpn., 2003 ACJ 1803 (MP), has laid down that when the deceased was an income tax payee and his returns are on record, then his income should be assessed on the basis of his returns. Sons of the deceased are doing some business is no ground to reduce the compensation. ( 6. ) Similarly, the Apex Court in the case of Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC), has held that claimants having their own earnings is no ground to reduce the multiplier. In that case, the deceased was the son and father filed the application for compensation. The Supreme Court has held that the father is earning is no ground for not applying the structured formula provided in Second Schedule to section 163-A of the Motor Vehicles Act. In this view of the matter, the approach adopted by the Claims Tribunal cannot be sustained in the eyes of law. ( 7. ) Now this court will proceed to determine the compensation. The deceased was earning Rs. 10,000 per month. Thus, his annual income would come to Rs. 1,20,000. After deducting 73rd towards self expenses of the deceased, which he would have spent on himself had he been alive, the dependency of the deceased is worked out at Rs. 80,000. Deceased was 45 years of age at the time of the accident as per the post-mortem report. It is well settled principle that the age mentioned in the postmortem report is not the exact age and there remains variation of plus or minus three. Considering this, age of the deceased can be safely assessed between 40-45 years. To this age, multiplier of 15 will be applicable. Applying the multiplier, the compensation comes to Rs. 12,00,000. Apart from this, the claimants shall also be entitled to a sum of Rs. 25,000 as damages under various heads such as funeral expenses, loss to the estate, loss of consortium, loss of love and affection, etc. Thus, the total compensation is enhanced from Rs. 2,40,000 to Rs. 12,25,000 (rupees twelve lakh twenty-five thousand). The enhanced amount shall fetch interest at the rate of 9 per cent per annum from the date of filing of the appeal till realization. All the claimants shall be entitled to equal share in the amount of compensation. ( 8. Thus, the total compensation is enhanced from Rs. 2,40,000 to Rs. 12,25,000 (rupees twelve lakh twenty-five thousand). The enhanced amount shall fetch interest at the rate of 9 per cent per annum from the date of filing of the appeal till realization. All the claimants shall be entitled to equal share in the amount of compensation. ( 8. ) Now coming to the cross-objection filed by the respondent insurance company assailing its liability, the Claims Tribunal has held that the insurance company is liable to pay the compensation. ( 9. ) Mr. Gajendragadkar, learned counsel for the respondent insurance company has contended that the insurance company is not liable for payment of compensation. According to him, the deceased was travelling in a goods vehicle and there is nothing on record to show that he was travelling with his goods. The Claims Tribunal in the present case has held that the deceased was travelling with his goods and, therefore, the insurance company is liable. ( 10. ) There is no dispute about the proposition of law that if owner of the goods is travelling in the goods vehicle for protection of his goods, then the insurance company is liable. Therefore, the question in the instant case is whether the deceased was travelling along with his goods for its protection? ( 11. ) Learned counsel for the respondent insurance company has contended that in the first information report, there is no mention that the deceased was travelling with his goods. Similarly, no goods are recovered from the spot as is clear from the recovery memo Exh. P7 and, therefore, according to him, the Claims Tribunal has committed error in holding that deceased was travelling with his goods. ( 12. ) The argument advanced by learned counsel for the respondent insurance company is without any merit because in the first information report, there is a mention that the deceased was travelling in the goods vehicle in connection with his business. AW 1, Meena Devi, widow of the deceased has deposed that her husband (the deceased) was travelling in Matador, which is a goods vehicle, at the time of the accident. According to her, her husband used to do the business of grocery and used to sell sugar, tea, ghee, etc at his shop at Kailaras. Ramkumar Verma, AW 2 is the eyewitness to the accident. According to her, her husband used to do the business of grocery and used to sell sugar, tea, ghee, etc at his shop at Kailaras. Ramkumar Verma, AW 2 is the eyewitness to the accident. He says that the deceased Nemichand had boarded the vehicle at Gwalior and was travelling with his goods which were three cartons. There is no cross-examination by the defendants on this point. Thus, Claims Tribunal has rightly held that deceased was travelling with his goods for its protection and as such, rightly held the insurance company to pay the compensation. ( 13. ) It is next contended by the counsel for the respondent insurance company that the deceased was travelling as a gratuitous passenger. This argument is without any basis because there is no suggestion in the cross-examination of Meena Devi, AW 1 or Ram Kumar Sharma, AW 2 to that effect. As such, Claims Tribunal has rightly held the insurance company liable to pay the compensation. ( 14. ) Resultantly, the appeal filed by the claimants succeeds and is allowed to the extent indicated above, while, the cross- objection filed by the respondent insurance company fails and is dismissed. Appeal allowed.